RULE 6. Involuntary Removal from a Particular Case
(a) Removal. A guardian ad litem may be removed from a particular case only by order of the court, either on motion of a party to the case or on the court’s own motion. When removing a guardian ad litem from a case, the judicial officer may take any other action deemed appropriate.
(b) Motion. A party who wishes to seek the removal of a guardian ad litem from a particular case shall proceed by written motion, which shall be served upon the parties and the guardian ad litem. Any such motion shall state whether a complaint has been filed with the Review Board pursuant to Rule 9. Any opposition and reply to the motion shall be governed by the applicable rules of court, and the guardian ad litem shall be treated as the opposing party for purposes of the motion. The judicial officer shall hold a hearing on the motion at the request of the party filing the motion. The motion may be advanced on the docket and receive priority over other cases when the judicial officer determines that the interests of justice so require.
(c) Mandatory Removal. A judicial officer shall remove a guardian ad litem from a particular case if the guardian ad litem has been suspended or removed from the Roster.
(d) Discretionary Removal. In all cases other than those specified in Rule 6(c), the decision whether to remove a guardian ad litem from a particular case is subject to the discretion of a judicial officer.
(e) No Right to Interlocutory Appeal. The decision whether to remove a guardian ad litem from a particular case is not subject to interlocutory review.
(f) Replacement. Following removal of the guardian ad litem, the judicial officer shall appoint a successor guardian ad litem pursuant to Rule 2, except that, in Title 18-A and Title 19-A cases, the court may order that the case proceed without a guardian ad litem.
(g) Interrelationship with Rule 9. The provisions of this Rule do not limit a party’s right to submit a complaint under Rule 9. A complaint submitted to the Review Board by a party to an open proceeding shall not proceed until the court issues a final judgment in that case, the court enters an order allowing the Board to proceed, or the guardian ad litem is removed or discharged. A party’s submission of a complaint to the Review Board under Rule 9 shall not by itself require the removal of the guardian ad litem in the subject proceeding.
Rule 6 establishes the procedures for removal of a guardian ad litem from a particular case. As set forth in 4 M.R.S. § 1557(4), the complaint process adopted in Rule 9 is in addition to the right of a party to file a motion to remove the guardian ad litem while a case is pending. Rule 6(a) also recognizes a judicial officer’s inherent authority to remove a guardian ad litem on his or her own initiation. No hearing is necessary if the judicial officer initiates the removal.
The second sentence of Rule 6(a) permits a judicial officer to “take any other action he or she deems appropriate” when removing a guardian ad litem from a particular case. Possible additional actions include, but are not limited to, filing a complaint pursuant to Rule 9; ordering the guardian ad litem to reimburse the parties or the Judicial Branch for fees, including those fees previously “earned” but no longer of use in the case; or ordering the guardian ad litem to transfer files or other information to the replacement guardian ad litem.
Advisory Note – September 2016
Rule 6(b) is amended to require that a motion to seek removal of a guardian “shall state whether a complaint has been filed with the Review Board pursuant to Rule 9.”
Rule 6(g) is amended to clarify that the provisions of Rule 6 do not limit a party’s right to submit a complaint under Rule 9 and to specify, “A complaint submitted to the Review Board by a party in an open proceeding shall not proceed until the court issues a final judgment in that case, the court enters an order allowing the Board to proceed, or the guardian ad litem is removed or discharged.”